Supreme Court Hears Arguments in Aereo Case

Here is the transcript of today's oral argument in the Supreme Court in the case of ABC v. Aereo. Aereo is a broadcast tv streaming service that for a small monthly fee, allows computer and mobile device users to access their network of antennas and watch shows that are broadcast on free over the air channels in their area. Not surprisingly, the TV networks want to shut them down.

The networks claim Aereo violates copyright laws. Aereo says all it does it provide access to the antennas and the user decides what to watch.

The legal issues are very technical. One has to do with whether Aereo's service falls under the "public performance" or "reproduction" part of the copyright statute. If the networks are right, then Aereo is in violation of the law for not paying re-transmission fees to the networks. (Networks earn $3 billion a year in re-transmission fees from cable and satellite providers.) [More...]

In Sony, this Court held that consumers have
a fair use right to take local over-the-air broadcasts and make a copy of it. All Aereo is doing is providing antennas and DVRs that enable consumers to do exactly what this Court in Sony recognized they can do when they're in home and they're moving the equipment, the antennas and the DVRs.

....the Second Circuit in CableVision ... said user specific, user initiated copies are private performances. They are not public performances.

For some reason, the Justices seemed pre-occupied with why Aereo uses thousands of tiny antennas (the size of a dime) instead of a giant antenna. Chief Justice Roberts and a few others thought the rationale behind using so many tiny antennas was to skirt the copyright law. When asked to explain, Aereo's lawyer provided this explanation which makes sense to me. As a start-up company, it has no idea what demand will be. So rather than invest in a huge antenna, it uses tiny antennas and adds more as demand increases.

One Justice asked why people would use Aereo. Here's their answer:

Because if you don't have to buy a TV, a DVR and an antenna and a sling box, which might cost you thousands of dollars...[I]f you want to just look at programming selectively, you pay $8 a month, it's a rental service.

Just because you rent equipment does not transform the person that is providing that equipment into a public performer, particularly when you are the one who initiates every set of signals that activates the programming and the content.

...We wanted to tell consumers, you can replicate the experience at very small cost. You know you have a right to put an antenna on your roof and put a DVR in your living room. We can provide exactly the same antenna and DVR for a fraction
of cost by putting it over the cloud.

If consumers can make a copy of programs broadcast on free, public over-the-air channels for their own personal use, then it seems to me all Aereo is doing is providing a means for people to do just that.

Well actually I do. The net works want to charge them for rebroadcasting the signal apparently. What I don't understand is all the service is really doing is providing a antenna, right? Something any individual can do. And the other thing is you would think with the mass exodus from networks because of all the cable choices networks would be willing to be a tiny bit more flexible to expand their shrinking audience.

...(although the cable companies do), they want them to have to pay them, the broadcasters, the same way the cable companies have to.

The broadcasters want anyone who gets local broadcasts by any means other than over their own antenna at their own residence to have to pay.

They also want those who do use their own antennas at their own residences to have to pay, but they just haven't yet figured out how to make that happen while still retaining the licenses that allow them use of the public airwaves "in the public interest".